You Be the Judge: Is Trump Forming One Court, under God?

Trump’s judicial nominations reveal that his unholy alliance with the religious right runs deep. Many individuals with truly concerning records are included within a slate of religiously conservative nominees. And since these can be lifetime appointments, an unqualified selection now may mean an unqualified presence for decades. While some nominees are simply conservative, others display far-right biases, often religiously motivated, that make them especially unfit to serve our diverse nation. Before examining the records of individual candidates, however, it’s important to understand the process through which they are nominated.

The shady, interest-group-driven dealings that have come to characterize the conservative judicial nomination process over the past two decades or so have been carefully chronicled, and Trump’s approach has largely stuck to the script. He made his list of possible Supreme Court candidates under the direction of the Heritage Foundation and the Federalist Society, the latter of which exists solely to advocate for a libertarian, originalist judiciary. The Federalist Society’s power over this administration is so significant that at least two dozen of the sixty-seven judicial nominees and appointees examined here are in some way affiliated with it.

The imposition of a religious test for public office is unconstitutional, and yet, a glance through the religious affiliations of Trump’s nominees would seem to indicate that federal judgeships are open to Christians only. With the exception of one (politically conservative) Jewish appointee, all nominees whose religious affiliation could be ascertained were adherents of some branch of Christianity. When it was possible to determine, largely from the Senate Judiciary Questionnaire most nominees are required to fill out, the specific churches that nominees attended, the results were mixed: many congregations were very conservative, while others openly welcomed LGBTQ members. This matches with the nominees themselves; some are hyper-conservative, while a number appear to be run-of-the-mill Republicans. Constitutionally, of course, no one can fault a Republican president for nominating a slate of conservative judges, but essentially limiting candidates to one religion is a different situation. Everyone recognizes that there are qualified candidates of other religions as well as many qualified judges who are secular, so it is clear that urgent attention is needed to address the lack of diversity among federal judicial appointees.

Equally concerning is that within the slate of Christian, conservative nominees are a number of candidates whose records of homophobia, racism, and lack of understanding regarding the Establishment Clause make them unlikely to serve the American people impartially. Below are some examples of egregiously unfit nominees.

Amy Coney Barrett (Confirmed): Barrett’s Catholic fundamentalism concerned many who believed that her personal faith could interfere with her ability to adjudicate fairly.

John K. Bush (Confirmed): Bush has written over 400 ultra-conservative blog posts under a pseudonym. In one he compared abortion to slavery and described them as the “two greatest tragedies in our country.”

Stuart Kyle Duncan: In 2011 he won an award from the Louisiana Family Forum, a Tony Perkins-founded organization that opposes same-sex marriage and abortion. He was special counsel to the Louisiana attorney general in a case where they argued successfully that Louisiana should be allowed to keep its definition of marriage as being between a man and woman.

Allison Eid (Confirmed): Eid was a Colorado Supreme Court judge, notable for dissenting in favor of school vouchers being used at religious schools.

Thomas Alvin Farr: Farr has spent parts of his legal career defending racial gerrymandering, restrictive voter ID regulations, and right-to-work laws.

L. Steven Grasz: Grasz is a member of the conservative Presbyterian Church in America, and, until March 2017, was the secretary for Nebraskans for the Death Penalty and Nebraskans for Capital Punishment. He is currently a board member of the Nebraska Family Alliance, which is an anti-abortion, anti- marriage equality, religious advocacy group. Grasz also received a “Not Qualified” rating from the American Bar Association, which stated he was “the first Circuit Court nominee since 2006 to receive a unanimous ‘not qualified’ rating.”

Matthew J. Kacsmaryk: Deputy general counsel at First Liberty Institute, a law firm that defends unconstitutional school prayers and government-maintained cross memorials.

Jeffrey C. Mateer: A former general counsel at First Liberty, Mateer has said that transgender kids are evidence of Satan’s plan and criticized bans on conversion therapy. He has also stated that as a member of a “conservative Baptist church” he has participated in discrimination based on sexual orientation.

Don R. Willett: Seen by some as a “judicial activist,” Willet became an adviser to Governor George W. Bush in 1996, working on a wide range of issues that, according to an in-depth exposé published in the Texas Observer last November, included “how to forge a closer relationship between religious institutions and the government.”

For those few who were not already deeply concerned by the Trump administration’s embrace of the American religious right, it is hoped that an examination of the views and backgrounds of these judicial nominees will drive home the threat posed by such an alliance. Aside from the de facto religious test that appears to have been imposed, the selection of candidates whose personal views on issues such as abortion and same-sex marriage are in clear conflict with the Constitution demonstrates that President Trump and his administration do not respect either the separation of church and state or the secular, progressive values that many Americans possess. For those of us who would like to see this change, now is the time to raise our voices in opposition to the dangerous path that the Trump presidency is taking us down.